Saturday, August 18, 2018

GateHouse: DOJ fights full disclosure

The U.S. Department of Justice is taking on the Tennessee
Supreme Court’s Office of Professional Responsibility over a 55-year-old U.S.
Supreme Court decision.

The controversy is not about just any decision, it’s about the landmark
decision of Brady v. Maryland. The U.S. Supreme Court held in Brady that a
prosecutor who withholds material evidence—evidence capable of changing the
outcome of the case—violates the U.S. Constitution.

The Tennessee Board published an ethics opinion earlier this year announcing
that prosecutors have a higher ethical obligation to divulge certain kinds of
evidence than what’s legally required of them under the Brady ruling and the
Constitution.

Although the U.S. Supreme set the framework for disclosing favorable evidence
the Court did not provide guidance to the states and federal government
relating to evaluating what evidence needs to be disclosed and the timelines
for disclosing the evidence. The rule in Tennessee seeks to provide guidance.

The proposed rule in Tennessee provides that prosecutors must hand over all
evidence that is in some way favorable to a defendant, regardless if they
believe it would affect the outcome of the case. Prosecutors are required to
turn those records over early enough for the information to be used effectively
by the defense, including guilty-plea negotiations. That is especially relevant
now that about 95 percent of criminal cases end in a guilty-plea.

All fifty states have a rule, statute or other type of authority concerning a
prosecutor’s obligation to disclose information favorable to the defense.
However, in most states what constitutes material evidence is left to
prosecutors to determine. With no guidance from the Courts, or respective
legislatures, it is troubling that prosecutors are left solely to decide
materiality.

The confusion is amplified by the fact that prosecutors are
confusing the test for a Brady violation—favorable and material—with the
standard for disclosure, a standard that is not entirely clear. Prosecutors
should provide all favorable evidence to the defense and the defense should
decide what is material. As it stands in most states, prosecutors, not defense
attorneys, are deciding what evidence might make a difference in the outcome.

That doesn’t make sense and some states, in addition to Tennessee, are doing
something about it.

The New York Courts recently adopted a rule requiring judges to issue an order
in criminal cases reminding prosecutors of their Brady obligations. The order
does not change what prosecutors must turn over, but it would for, the first
time allow, judges to hold prosecutors in contempt who willfully violate the
obligation.

Just this month the U.S. Supreme Court decided a Brady case. The nuances of
Brady were on full display. Justice Stephen Breyer, a left leaning justice,
wrote the court’s opinion. Breyer found that the evidence withheld was
favorable to a couple of defendants accused in the brutal gang rape and murder
of a woman in Washington D.C. However, Breyer found that when the evidence that
was withheld was considered along with the rest of the evidence before the jury
“it is too little, too weak, or too distant from” the other evidence to have
made a difference.

In a friend of the court brief filed in a case decided by the U.S. Supreme
Court last year over 30 former federal and state prosecutors argued,
”[z]ealously protecting Brady is especially important at a time when . . .
public confidence in the criminal justice system is declining.” The former
prosecutors shared their support for the premise that “a prosecutor’s duty is
to seek justice, not merely to convict.”

Prosecutors withholding favorable information because they believe it won’t
make a difference in the case will do nothing to improve public confidence in
the criminal justice system.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book The Executioner’s Toll, 2010 was released by McFarland
Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.